Authored by Kevin Dubose.
For me, it started with debate. In 8th grade I tried out for and made the debate team. My partner and I tied with another team from our school to win the district junior high debate tournament. For the first time, I found success and validation for a particular skill set, and it helped me create an early and positive self-image. People already began to tell me I should be a lawyer.
In 9th grade I jumped into high school debate with both feet, and did that for four years. Debate became an even bigger part of my identity. It taught me invaluable skills in public speaking (both presentation of prepared texts and speaking extemporaneously), critical analysis, structured thinking, research, and teamwork. It also indoctrinated me into a culture that valued skepticism, cynicism, sarcasm, caustic cleverness, and hyper-competitiveness.
I went to law school because I wanted to be on my feet talking to people as a trial lawyer. After graduation I got that chance, joining a small insurance defense litigation firm in Houston. In my first six years of practice I tried 25 jury trials. I got to work with and against legendary trial lawyers like Joe Jamail, John O’Quinn, and Jim Perdue. They all had different styles, and I watched and learned from all of them.
I tried to create a trial lawyer persona that was compatible with my personality: that of a nice young man, innocent and honest. That worked to a point, but I was working in a combative world of power struggles, gamesmanship and bullying. At times I succumbed to those pressures as a survival extinct.
My lowest moment came when I was cross-examining an expert witness whose damaging testimony against my client could not be impeached on the merits. I had been tipped off to ask this witness if he was a member of a certain professional organization. He said he was. But I knew that he was technically a provisional member, because that organization required an applicant to attend three annual meetings before achieving full membership, and he had attended only two. I had obtained a current membership roll, and he was not on it.
When I confronted him with this “lie,” he became irate and almost came out of the witness box to attack me, thus losing all credibility with the jury. I did this even though I knew this disputed membership had nothing to do with the truth of his testimony, and that what I presented as a lie was really just a technicality — his answer was closer to the truth than my impeachment stunt. I was not proud.
A little over five years into my career as a trial lawyer, I experienced a bout of severe stomach cramps for almost two weeks. After a battery of tests and diagnostic procedures, I was told there was nothing wrong with me but stress. Six months later, I began having severe chest pains. More tests, more diagnostic procedures, same diagnosis: there was nothing wrong with me but stress. At the age of 30, my body was already revolting against my chosen profession as a trial lawyer.
So I thoughtfully considered what I enjoyed about the practice of law that did not involve constantly bickering with opposing counsel. I enjoyed writing. I enjoyed analytical thinking. I enjoyed legal research. I put those things together and realized that I had always enjoyed handling the appeals of cases that I tried. I realized that there were probably trial lawyers who did not enjoy those things, and maybe I could talk them into letting me handle their appeals.
I started a solo appellate practice that lasted for two years. I then convinced Jim Perdue to let me handle the appeals for his eight-lawyer plaintiff’s personal injury firm, which I did for seven years. I then joined an appellate boutique that I practiced with for nine years. When it split up I joined with friends to form an appellate boutique where I have been practicing for twenty-one years now. Next year will mark forty years of limiting my practice to appellate law.
Appellate lawyers and trial lawyers operate in different arenas with different cultures. Appellate law is more academic, more intellectual, more civilized. Most of the skirmishes are in writing, and on the rare occasion when counsel meet in the courtroom for oral argument before panels of appellate justices the rules are strict, the interaction is brief, and the typical behavior is neither personal nor combative.
Yet in the early days of the appellate specialty (first recognized in Texas in 1987), when the appellate bar was trying to establish its own identity and culture, there were practices carried over from trial litigation in terms of gamesmanship and combativeness. I wrote an article called “Ten Suggestions for a More Civilized Appellate Bar.” Others wrote similar articles that expressed a similar theme.
In 1995, a committee was appointed to draft what eventually became the Standards for Appellate Conduct. In 1999, all Texas appellate courts adopted and promulgated these Standards, which became the first ethical guidelines specifically governing appellate practice in the United States. These Standards went a long way toward clarifying and reinforcing the culture of professionalism and civility that was expected in Texas appellate courts.
I continued to write and speak about ethics, professionalism, and civility. In 2012 I received the Chief Justice Jack Professionalism Award from the Texas Center for Legal Ethics. In 2015 I joined the Board of Directors of the Center and served on that Board for eight years. Because of that association I was presented with many more speaking opportunities, and since 2017 I have participated in 60-75 presentations on behalf of the Texas Center for Legal Ethics. Advocating for legal ethics and professionalism has become an important part of my legal career.
I often share two quotes that I try to let guide my practice. One is from appellate lawyer Charles R. “Skip” Watson in Austin. Skip once told me, “Opposing counsel are not your enemy. They are just professionals trying to represent their client to the best of their ability. Just because we have an adversarial system does not mean that we need to treat each other in an adversarial manner.”
The other quote is from Jeff Brown, a former State appellate justice, now a Federal District Judge. He said, “The best way to persuade a judge or jury is to always come across as the most reasonable lawyer in the room.” Not by fighting tooth and nail on every point, not by proving that you can be as tough or as abusive or as combative as the other lawyers. Just by being the most reasonable.
To simply be a “reasonable” lawyer sounds like such a low bar. But it has such a high yield.